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November 4, 2009

SCOTUS argument transcripts for two criminal justice cases argued today

As noted in this prior post, the Supreme Court today heard arguments in Pottawattamie County v. McGhee, which concerns potential liability of prosecutors for arranging false testimony, and in Wood v. Allen, which concerns the scope of federal court review of facts in state criminal proceeding.  Now, via SCOTUSblog, the "oral argument transcripts for Pottawattamie County v. McGhee and Wood v. Allen are here and here."

With a faculty meeting and then a baseball game in my near future, I may not get a chance to comment on either of these arguments anytime soon.  But that should not stop others from noting anything especially noteworthy via the comments.

November 4, 2009 at 03:51 PM | Permalink


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I am just shocked by the state's argument in Pottawattamie County. The impact of the argument can be stated two ways:

1) a prosecutor who, during the investigation, manufactures false testimony cannot ever be held liable if he is the same prosecutor who prosecutes the case and uses the false evidence, and
2) if you are the person who, according to the state's own argument, is the CAUSE of the injury (i.e. by introducing the evidence) then you cannot ever be held liable; but if you are the person who is a mere ACCOMPLICE to the injury (i.e. by only manufacturing the false testimony) then you can be held liable.

What sort of weird argument is that?! Is that really the incentive we want to give those who investigate and prosecute crimes?

I think the concern about chilling prosecutorial involvement in investigations is overstated. The only thing it will chill is fabricating evidence before there is probable cause to arrest anyone.

Ultimately, I think Sotomayer, Ginsburg, Stevens, and Kennedy will vote with the wrongly-convicted individuals. Alito, Roberts, and Scalia will vote with the state. Breyer seems inclined to vote with the former group, but he expressed some reservation towards the end of Clement's argument. Thomas, being silent, was difficult to read.

Posted by: DEJ | Nov 4, 2009 7:04:40 PM

DEJ, the arguments only look weird when taken completely out of context. First of all, when does the prosecutorial function truly begin? Simply when proceedings are instituted? Thus, there is undeniable logic to extending out the immunity. Second of all, the immunity protects the innocent prosecutor too. Should innocent prosecutors be given less immunity because they choose to interview witnesses etc. before proceedings are instituted? And more to the point, why would the Supreme Court want to incentivize prosecutors to do less diligence rather than more.

This is one of those cases where it's easy to pen an outraged dissent, and I suspect some of the libs won't be able to resist the temptation.

Sotomayor's experience as a prosecutor may sway her. Who knows?

Posted by: federalist | Nov 4, 2009 7:21:33 PM

Thank you for this post federalist because it perfectly illustrates why I was so disturbed by the entire argument (both sides) but especially the arguments by Clement that were simply out of line. Once upon a time the Supreme Court believed that had a duty to uphold the Constitution. Yet oral argument that was made was a policy argument, not a constitutional one.

"Should innocent prosecutors be given less immunity because they choose to interview witnesses etc." Of course they should, beyond any doubt, if that is what the Constitution requires. What the Constitution requires should be driving the debate, not prosecutor practice or what the Supreme Court would like prosecutor practice to be. If prosecutors or defense attorneys or anyone else is out of line with the Constitution then they need to change.

As far as I see it, if prosecutors want to stick there noses in what is essentially a police function then they get to have the same liability as police do. If they don't like that then don't stick there noses in where they don't belong. I don't see anywhere in the Constitution where it says that the prosecutor gets to look someone in the eye (as Alito put it) to test their credibility. That is a prosecutorial function that prosecutors have invented out of thin air.

On both sides, this should be case about what the Constitution requires, not what DAs need to do their job.

Posted by: Daniel | Nov 4, 2009 8:26:24 PM

Well said, Daniel.

Posted by: full faith and credit | Nov 4, 2009 8:30:03 PM

First, I had previously read the cert petition and the Petitioner's and Respondents' briefs. My views were not formed out of context. Second, it's really unpersuasive when you use phrases like "undeniable logic." Third, the investigative role of a prosecutor, if engaged in, is entirely distinct from a prosecutorial role. One is investigative; the other is advocacy. Diligence has nothing to do with it. A ruling in favor of Respondents will do nothing more than provide an incentive to not bring an advocacy role into the investigation.

Further, in order to survive summary judgment, a complaint would have to allege that the prosecutor fabricated evidence and point to specific facts that support the allegation. It's not going to be easy to satisfy; "innocent" prosecutors have little to worry about.

What part of Clement's arguments did you feel were out of line? Arguing for Respondents, he, IMO, did not resort to policy arguments.

Posted by: DEJ | Nov 4, 2009 8:52:42 PM

Amen to Daniel's post. The constitution either protects citizens from badge-heavy cops and jaded, conniving prosecutors or it doesn't.

DEJ notes: "Ultimately, I think Sotomayer, Ginsburg, Stevens, and Kennedy will vote with the wrongly-convicted individuals."

If DEJ's correct and there's really only four somewhat reliable votes on the "supreme court" for wrongly convicted citizens, then what's the point? The battle's over until that far off day when the pendulum swings back a little closer to Warren Court sensibilities.

But for now it looks like the "movement" justices' guiding light (passivitity and subservience to the executive and legislative branches) has become the only light.

BTW: What's remarkable to me about Pottawattamie is that it got this much attention on its way to being swept back under the supreme court's carpet. Face it, cops and prosecutors exist in an arm-punching, macho culture in which nobody wants to be the guy who says: "Hey, did this defendant actually do anything wrong?"

Posted by: John K | Nov 5, 2009 9:55:33 AM

...Though it is amusing to envision Alito doing the Larry David stare down with a suspect.

Posted by: John K | Nov 5, 2009 10:21:43 AM

I think we should be quite confident that Justice Thomas will vote against the government, based on his dissent from denial of cert in Michaels v. McGrath, 531 U.S. 1118 (2001).

I think Clement did an excellent job returning the Court to first principles at the end of his argument. 42 U.S.C. 1983 is a congressional statute; where common law did not clearly oppose the scope of the section's text, the Court should not act to restrict its scope. And, as the Court recognized in Buckley and Kalina, common law did not provide for absolute immunity when prosecutors act outside of a quasi-judicial function - because only judges had such immunity.

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